Independent Medical Exams

How Should I Handle an Independent Medical Examination in Louisiana?

Injured at Work New Orleans Lawyer

It is extremely important for any injured employee in Louisiana to thoroughly prepare for a workers compensation Independent Medical Examination, ideally with the help of the employee’s attorney.

First, an experienced Louisiana workers compensation attorney will want to determine if the employee should even be having an Independent Medical Examination, by asking:

• Is there a valid basis for an Independent Medical Examination?
• Should the dispute be handled in the Utilization Review process instead?
• Are there actually conflicting medical opinions (which are required for an Independent Medical Examination)?
• Is there a valid basis under which to file an objection to the Independent Medical Examination?
• What are the repercussions if the workers compensation Judge agrees that an Independent Medical Examination is improper or unnecessary?

If the employee is going to submit to an Independent Medical Examination, the employee should take the following steps to prepare for the examination:

• The employee should make sure that all medical records and diagnostic films have been submitted to the Independent Medical Examiner well in advance of the examination.
• The employee should make sure that he or she is extremely familiar with his or her complete medical history. The Independent Medical Examination doctor will likely be well aware of the employee’s complete medical history, and will likely ask the employee about all of this medical history, including even minor injuries. So the injured employee needs to be prepared to discuss the entire medical history – including injuries and illnesses big and small, recent and from long ago – and especially any medical history related to the body part injured in the workers compensation accident. Ideally, the employee would have an experienced workers compensation attorney to assist with this.
• The employee should make sure that he or she is extremely familiar with the employee’s complete course of treatment. Again, the Independent Medical Examination doctor will likely be well aware of the employee’s complete medical history, and will likely ask the employee about all of this medical history, including even minor injuries. So the injured employee needs to be prepared to discuss the employee’s complete course of treatment. So the employee should review the employee’s complete medical records and notes, including all tests, surgeries, procedures, and other treatments that the employee has received.
• The employee should review his or her current symptoms. The injured employee needs to be prepared to inform the Independent Medical Examiner of all the employee’s current symptoms in detail. The employee should try not to forget any symptoms or limitations, even if that means the employee should bring in personal notes to the examination to refresh the employee’s memory.
• The employee should review exactly how the accident happened. The injured employee needs to be prepared to inform the Independent Medical Examiner in detail about exactly how the injury happened. The employee should try not to forget any details and make sure there are no inconsistencies in the events, again, even if that means the employee should bring in personal notes to the examination to refresh the employee’s memory. The employee should also discuss these events with his or her attorney ahead of the Independent Medical Examination.
• The employee should find out what else has been submitted to the doctor. The injured employee should make sure that he or she is fully aware of all the medical records and information that the Independent Medical Examination doctor has received in advance of the examination.
• The employee should find out exactly what the workers compensation insurance company has told and asked the Independent Medical Examination doctor. The injured employee should make sure that he or she is fully aware of any information that the workers compensation insurance company has submitted to the Independent Medical Examination doctor, especially any information besides the medical records. Ideally, the employee would have an experienced workers compensation attorney to handle this. But often, the insurance company will send a letter to the Independent Medical Examination doctor that unfairly describes the employee’s injury or medical situation in a light that is unfair to the employee.  The employee needs to know what that letter says so that the employee can refute any unfair or prejudicial information in that letter.
• The employee should review exactly what the employee is going to tell the Independent Medical Examiner about the employee’s medical history, medical conditions, and accident history. The injured employee should make sure that he or she is fully prepared and knows exactly what he or she will say when the Independent Medical Examination doctor asks “what is your medical history” or “tell me about the accident” or “how are you feeling today.” Ideally, the employee would have an experienced workers compensation attorney to assist with this.
• The employee should possibly ask the employee’s primary treating physician for a supplemental and updated medical report explaining the employee’s current updated condition, as well as why the treatment that the treating physician has recommended is exactly the type of treatment that the employee needs. The injured employee should make sure that his or her medical records are up-to-date and thorough. If they are not, the employee should return to the treating physician in advance of the Independent Medical Examination, in order to make the medical records up-to-date and complete. Ideally, the employee would have an experienced workers compensation attorney to handle this.
• The employee should dress appropriately for the Independent Medical Examination. The injured employee should act in a manner that is consistent with the employee’s injury. That means that the employee should wear or bring any devices needed because of the employee’s injury, such as a brace, crutches, or a sling.
• The employee should plan to arrive early for the Independent Medical Examination. It is never a good idea to be late for an Independent Medical Examination, and missing an appointment time can result in a suspension of workers compensation benefits.
• The employee should plan to bring a friend or relative to the Independent Medical Examination. A trusted friend or relative can act as an observer in the Independent Medical Examination, by taking notes, providing emotional support, and acting as a witness.
• The employee should discuss with the employee’s attorney the possibility of the employee’s attorney actually attending the Independent Medical Examination. The employee’s attorney can also act as an observer in the Independent Medical Examination, by taking notes, providing emotional support, and acting as a witness. The employee’s attorney can also assist the employee should improper or irregular events occur.
• The employee should refrain from taking pain medication or anti-inflammatory medication prior to the examination if allowed by the employee’s treating physician. Refraining from taking pain medication or anti-inflammatory medication prior to the examination will allow the Independent Medical Examination doctor to objectively view the employee’s symptoms and medical issues.

How to Handle the Actual Independent Medical Examination Itself in Louisiana Workers Compensation

Again, if there are opposing doctors’ opinions regarding an injured employee’s condition or capacity to work, the Office of Workers Compensation Administration or the workers compensation Judge may appoint an Independent Medical Examiner to examine the employee, or simply to review the employee’s medical records.

This one-time examination is called an Independent Medical Examination (IME).

At the examination, the Independent Medical Examination doctor will take the employee’s medical and accident histories, ask about current symptoms, and perform a physical examination.

This IME doctor will have reviewed the medical records in advance.

Some Independent Medical Examination doctors will actually watch an injured employee from the minute the employee leaves his or her car until the moment that the employee returns and drives away.

Independent Medical Examination doctors have regularly issued reports which say things like “the patient ran from his car into the building, but then began to limp when he entered the examination room.” 

An injured employee at an Independent Medical Examination (IME) should:

• Be honest in all aspects;
• Be polite and respectful;
• Be specific and detailed in describing injuries and symptoms;
• Include all injuries and symptoms that are related to the accident;
• Be truthful about the employee’s physical limitations;
• Explain why the employee’s previous injuries are different from the employee’s work-accident injuries;
• Stay calm, and let the IME physician know right away if the physician actually hurts the employee;
• Be aware of the fact that the IME physician is neither the employee’s advocate nor the employee’s medical doctor;
• Be mindful that the employee may be surveilled by an insurance investigator, by wearing braces and using canes; and
• Limit activities on the day before, the day of and the day after the IME, due to possible surveillance.

As for a list of things that an injured employee at an Independent Medical Examination (IME) should NOT do:

• Do not exaggerate or fake injuries, because many IME doctors will note exaggeration in the IME report;
• Do not downplay pain or symptoms;
• Do not attempt to over-react when touched or prodded;
• Do not be offended by the doctor’s questions;
• Do not ask medical questions about your treatment;
• Do not answer questions that are not asked;
• Do not contribute information beyond the scope of the examination;
• Do not make small talk;
• Do not overly compliment the IME doctor;
• Do not discuss the specifics of the legal case; 
• Do not discuss any conversations with the employee’s lawyer. 

Overall, the most important point for the injured employee in an Independent Medical Examination is for the employee to be detailed and thorough, but not to exaggerate any injuries.

The Louisiana Statutes for Independent Medical Examinations in Louisiana Workers Compensation

The primary Louisiana statutes on Independent Medical Examinations are La. R.S. 23:1123, La. R.S. 23:1124, La. R.S. 23:1124.1, La. R.S. 23:1125 and La. R.S. 23:1317.1. These statutes read as follows:

§1123. Disputes as to condition or capacity to work; additional medical opinion regarding an examination under supervision of the secretary

If any dispute arises as to the condition of the employee, or the employee’s capacity to work, the secretary, upon application of any party, shall order an additional medical opinion regarding an examination of the employee to be made by a medical practitioner selected and appointed by the secretary. The medical examiner shall report his conclusions from the examination to the secretary and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

Amended by Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 2010, No. 3, §1, eff. May 11, 2010; Acts 2012, No. 235, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.

§1124. Refusal to submit to an additional medical opinion regarding an examination; effect on right to compensation

If the employee refuses to submit himself to an additional medical opinion regarding a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter may be suspended by the employer or payor until the examination takes place. Such suspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A)(4) and (5). When the employee has filed a disputed claim, the employer or payor may move for an order to compel the employee to appear for an additional medical opinion regarding an examination. The employee shall receive at least fourteen days written notice prior to the additional medical opinion regarding an examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.

Acts 1997, No. 393, §1; Acts 2013, No. 337, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.

§1124.1.  Cumulative medical testimony; medical examination

Neither the claimant nor the respondent in hearing before the hearing officer shall be permitted to introduce the testimony of more than two physicians where the evidence of any additional physician would be cumulative testimony.  However, the hearing officer, on his own motion, may order that any claimant appearing before it be examined by other physicians.

Acts 1988, No. 938, §2, eff. Jan. 1, 1989.  Acts 1989, No. 260, §1, eff. Jan. 1, 1990.

§1125.  Right of employee to written report of medical examination; penalty for failure to furnish

A.  Whenever an employee who is being treated by his choice of medical provider shall, at the request of the employer, the employer’s insurer, or the representative of the employer or its insurer, submit to any type of medical examination and a medical report is received by said requester, such employee or his representative shall be entitled to a copy of the written report of the results of said examination within thirty days from the date the requester receives the report.

B.  Whenever an employee has accepted medical treatment by a health care provider referred by the employer, the employer’s insurer, or the representative of the employer or its insurer, he shall be entitled to receive a copy of any medical records of the medical provider that are in the possession of the employer or its insurer within thirty days from the date of the written demand upon the employer, the employer’s insurer, or the representative of the employer or its insurer.

C.  Such written report or records shall be furnished to said employee or his representative at no cost to the employee.  Any employer who without just cause fails to furnish such report or records to an employee so requesting same within the thirty-day period provided for above shall be liable to the employee for a civil penalty in the amount of two hundred fifty dollars, plus reasonable attorney fees for the collection of such penalty.

Added by Acts 1976, No. 243, §1; Acts 1999, No. 134, §1, eff. June 9, 1999.

§1317.1. Additional medical opinion regarding medical examinations

A. Any party wishing to request an additional medical opinion regarding a medical examination of the claimant pursuant to R.S. 23:1123 and 1124.1 shall be required to make its request at or prior to the pretrial conference. Requests for additional medical opinions regarding medical examinations made after that time shall be denied except for good cause or if it is found to be in the best interest of justice to order such examination.

B. An examiner performing additional medical opinion exams pursuant to R.S. 23:1123 shall be required to prepare and send to the office a certified report of the examination within thirty days after its occurrence.

C. The report of the examination shall contain the following, when applicable:

(1) A statement of the medical and legal issues the examiner was asked to address.

(2) A detailed summary of the basis of the examiner’s opinion, including but not limited to a listing of reports or documents reviewed in formulating that opinion.

(3) The medical treatment and physical rehabilitative procedures which have already been rendered and the treatment, if any, which the examiner recommends for the future, together with reasons for the recommendation.

(4) Any other conclusions required by the scope of the additional medical opinion regarding a medical examination, together with reasons for the conclusion reached.

(5) A curriculum vitae of the examiner.

(6) A written certification personally signed by the examiner that the report is true. The substance of the certification shall be: “I certify that I have caused this report to be prepared, I have examined it, and to the best of my knowledge and belief, all statements contained herein are true, accurate, and complete.”

D. If a physical examination of the claimant was conducted, the certified report shall contain all of the following additional information:

(1) A complete history of the claimant, including all previous relevant or contributory injuries with a detailed description of the present injury.

(2) The complaints of the claimant.

(3) A complete listing of tests and diagnostic procedures conducted during the course of the examination.

(4) The examiner’s findings on examination, including but not limited to a description of the examination and any diagnostic tests and X-rays.

E. When the additional medical opinion medical examiner’s report is presented within thirty days as provided in this Section:

(1) The examiner shall be protected from subpoena except for a single trial deposition. However, upon a proper motion for cause, the workers compensation judge may order further discovery of the additional medical opinion by a medical examiner as deemed appropriate.

(2) Except to schedule the deposition or further discovery as described above, the office of the additional medical opinion medical examiner shall not be contacted regarding the claimant by any party, attorney, or agent.

F. Objections to the additional medical opinion regarding a medical examination shall be made on form LDOL-WC-1008, and shall be set for hearing before a workers compensation judge within thirty days of receipt. No mediation shall be scheduled on disputes arising under this Section.

Acts 1995, No. 328, §1, eff. June 16, 1995; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2012, No. 235, §1; Acts 2017, No. 381, §2, eff. June 23, 2017.